United States District Court, S.D. Texas, Galveston Division
AARON BOOTH Plaintiff.
GALVESTON COUNTY, ET AL. Defendants.
MEMORANDUM AND RECOMMENDATION
M. EDISON UNITED STATES MAGISTRATE JUDGE
before the Court are two separate motions for preliminary
injunction filed by Plaintiff Aaron Booth
("Booth"). The first motion, Plaintiffs Motion for
Preliminary Injunction, contends that Galveston County's
bail system violates the United States Constitution and asks
this Court to issue an order requiring certain procedural
changes in how Galveston County's secured money bail
system operates. See Dkt. 3-1. The second motion,
Plaintiffs Motion for Preliminary Injunction [sic] Requiring
Counsel at Initial Bail Hearings, seeks an order requiring
Galveston County to provide counsel at initial bail hearings
for those felony arrestees who cannot afford representation.
See Dkt. 205. The parties have submitted extensive
briefing on the legal issues involved, provided voluminous
exhibits, and presented live testimony from 11 witnesses at a
day-long preliminary injunction hearing. After thoroughly
reviewing the briefing, analyzing the applicable law,
considering the evidentiary submissions, entertaining live
testimony, and hearing argument from counsel, the Court
RECOMMENDS that the Motion for Preliminary
Injunction (Dkt. 3-1) be DENIED and the
Motion for Preliminary Injunction [sic] Requiring Counsel at
Initial Bail Hearings (Dkt. 205) be GRANTED.
This Memorandum and Recommendation constitutes the
Court's findings of facts and conclusions of law pursuant
to Rule 52 of the Federal Rules of Civil Procedure.
recent years, a number of lawsuits have been filed all across
this great nation challenging long-established bail
practices. This case is one of those lawsuits. It focuses on
Galveston County's pretrial detention system for felony
arrestees and requires this Court to assess the
constitutionality of that pretrial detention system.
was arrested in April 2018 for an alleged felony. A
prosecutor recommended Booth's bail be set at $20,
000.00. After being booked into Galveston County Jail, Booth
appeared before a magistrate. The magistrate informed Booth
of the charges against him, advised him of his rights, and
set bail. More specifically, the magistrate signed an order
requiring Booth to post a $20, 000.00 bond to be released
from jail pending the resolution of his criminal case. Booth
did not have an attorney at the time bail was set. Only after
the hearing at which bail was determined did Booth have the
opportunity to complete the paperwork demonstrating his
financial inability to hire counsel. Booth received a
court-appointed counsel the day after his bail hearing. Booth
claims that he could not afford the amount required for his
release and, as a result, spent 54 days in custody before a
bail reduction hearing was held.
brings this lawsuit on behalf of himself and all others
similarly situated, alleging that Galveston County, a group
of Galveston County District Court Judges (the "District
Court Judges"), several Galveston County Magistrate
Judges, and Galveston County District Attorney Jack Roady
(the "District Attorney") all act together to
employ an unconstitutional bail policy that results in the
routine detention of Galveston County felony arrestees before
trial solely due to their inability to pay bail. Booth also
alleges that the same policy denies arrestees their
constitutional right to counsel at a "critical
stage" of the prosecution: the initial bail hearing.
seeks both injunctive and declaratory relief.
Law Dictionary defines "bail" as "[a] security
such as cash, a bond, or property; esp., security required by
a court for the release of a criminal defendant who must
appear in court at a future time." Bail,
Black's Law Dictionary (11th ed. 2019). See also
Tex. Code Crim. Pro. Art. 17.01 (defining "bail" as
"the security given by the accused that he will appear
and answer before the proper court the accusation brought
against him, and includes a bail bond or a personal
that this case concerns the use of bail in Galveston County,
a brief history of bail is appropriate to set the stage for
the analysis to come.
Bail originated in medieval England as a device to free
untried prisoners. The penalty for most crimes was a fine
paid as compensation to the victim. When capital and corporal
punishment replaced fines, abuses in the delay between arrest
and trial began to emerge. In response, the common law right
to bail was codified into English law, and the principles
that an accused is presumed innocent and entitled to personal
liberty pending trial were incorporated into the Magna Carta.
Buffin v. City and Cty. of San Francisco, No.
15-CV-04959-YGR, 2019 WL 1017537, at *11 (N.D. Cal. Mar. 4,
2019) (internal quotation marks, footnote, and citations
history makes clear that the settlers brought this practice
with them to America." Jennings v. Rodriguez,
138 S.Ct. 830, 863 (2018) (Breyer, J., dissenting). Colonial
constitutions, the Northwest Ordinance of 1787, the Judiciary
Act of 1789, and the vast majority of state constitutions
throughout history have protected a right to bail by
sufficient sureties. See Id. at 863-64. The United
States Constitution also addresses the use of bail. The
Eighth Amendment, which prohibits "excessive bail,"
recognizes both the obvious liberty interest of pretrial
detainees (those accused, but not yet convicted) and the
government's legitimate interest in ensuring the
accused's appearance at trial. U.S. Const. Amend. VIII.
It does so by ensuring that "the fixing of bail for any
individual defendant must be based upon standards relevant to
the purpose of assuring the presence of that defendant."
Stack v. Boyle, 342 U.S. 1, 5 (1951). Accordingly,
the amount of bail cannot be "excessive"-that is,
"higher than . . . reasonably calculated to" ensure
the accused's appearance. Id. (citation
presumption of innocence is a bedrock principle of the
American criminal justice system. As the Supreme Court has
explained: "Unless th[e] right to bail before trial is
preserved, the presumption of innocence, secured only after
centuries of struggle, would lose its meaning."
Id. at 4. Thus, in our system, monetary bail is the
mechanism that protects the well-established "right to
freedom before conviction," while also protecting
society's interest in ensuring that defendants answer the
charges against them. Id. Accordingly, "liberty
is the norm, and detention ... is the carefully limited
exception." United States v. Salerno, 481 U.S.
739, 755 (1987).
last year, the Fifth Circuit issued a landmark opinion in a
case challenging Harris County's system of setting bail for
poor misdemeanor arrestees. See ODonnell v. Harris Cty.
(ODonnell II), 892 F.3d 147 (5th Cir.
2018). As a result, ODonnell II provides
the framework by which the constitutionality of any pretrial
detention system within the Fifth Circuit must be measured.
In ODonnell II, the plaintiffs brought a class
action lawsuit against Harris County and several of its
officials alleging that Harris County's system of setting
bail for indigent misdemeanor arrestees violated Texas
statutory and constitutional law, as well as the Equal
Protection and Due Process Clauses of the Fourteenth
Amendment. After an eight-day preliminary injunction hearing,
the District Court granted the request for a preliminary
injunction, finding that the plaintiffs were likely to
prevail on their Equal Protection and Due Process claims.
See Id. at 152. The District Court's injunction
required the implementation of safeguards to prevent the
automatic imposition of pretrial detention on indigent
misdemeanor arrestees and the release of numerous detainees
subjected to Harris County's constitutionally deficient
bail system. See Id. at 155.
Fifth Circuit largely upheld the injunction, concluding that
it is constitutionally impermissible to automatically impose
pretrial detention on indigent misdemeanor arrestees. On the
due process front, the Fifth Circuit held that procedures
must be in place that "sufficiently protect detainees
from magistrates imposing bail as an 'instrument of
oppression.'" Id. at 159. Because bail for
indigent arrestees in Harris County was almost always set at
an amount that detained the defendant, the Fifth Circuit
found a violation of the Due Process Clause. See Id.
In terms of the Equal Protection Clause, the Fifth Circuit
affirmed the District Court's holding that Harris
County's bail-setting procedures violated the Equal
Protection Clause because "they treat otherwise
similarly-situated misdemeanor arrestees differently based
solely on their relative wealth." Id. at 161.
As the Fifth Circuit explained:
In sum, the essence of the district court's equal
protection analysis can be boiled down to the following: take
two misdemeanor arrestees who are identical in every way-same
charge, same criminal backgrounds, same circumstances,
etc.-except that one is wealthy and one is indigent. Applying
the County's current custom and practice, with their lack
of individualized assessment and mechanical application of
the secured bail schedule, both arrestees would almost
certainly receive identical secured bail amounts. One
arrestee is able to post bond, and the other is not. As a
result, the wealthy arrestee is less likely to plead guilty,
more likely to receive a shorter sentence or be acquitted,
and less likely to bear the social costs of incarceration.
The poor arrestee, by contrast, must bear the brunt of all of
these, simply because he has less money than his wealthy
counterpart. The district court held that this state of
affairs violates the equal protection clause, and we agree.
Id. at 163.
addressing the appropriate scope of the injunction, the Fifth
Circuit held that individualized hearings after which
magistrates had to "specifically enunciate their
individualized, case-specific reasons for [imposing bail] is
a sufficient remedy." Id. at 160. The
procedures required for such hearings include "notice,
an opportunity to be heard and submit evidence within 48
hours of arrest, and a reasoned decision by an impartial
decisionmaker." Id. at 163. The Fifth Circuit
then provided detailed guidance on how a properly crafted
injunction should look, cautioning that it should not
"amount to the outright elimination of secured bail
for indigent misdemeanor arrestees." Id.
BAIL SYSTEM FOR FELONY ARRESTEES IN GALVESTON COUNTY
procedures governing how the Galveston County bail system
functions for felony arrestees have changed dramatically
since this lawsuit was initially filed. As a result, the
facts described below are arranged in two categories: Past
Bail Schedule Policy and Current Bail Schedule Policy. Past
Bail Schedule Policy refers to the system in place at the
time of Booth's arrest in April 2018. Current Bail
Schedule Policy refers to the procedures utilized today.
Bail Schedule Policy.
time of Booth's arrest, Galveston County's bail
system for felony arrestees functioned in the following
• After a felony arrestee was taken into custody, the
arresting officer would prepare a preprinted bail order form
identifying the charges levied against the arrestee, as well
as a bail amount for each charge.
• In setting the bail amounts for felony charges, the
arresting officer would call the intake district attorney,
who would then recommend a bond amount based on amounts
reflected in a schedule prepared by the District Attorney for
use by attorneys in his office. If the arrestee had multiple
charges, the recommended bail amounts for each charge were
• After the arresting officer completed the bail order
form, the felony arrestee could be booked into the Galveston
• Usually within 24 hours of incarceration, an arrestee
appeared before a magistrate for a proceeding referred to as
"magistration." This was the first time an arrestee
would appear before a judicial officer. At magistration, the
magistrate would briefly explain the charges levied against
the arrestee, inform the arrestee of his basic rights,
including the right to remain silent, and ask the arrestee a
few questions (Are you a United States citizen? Have you
served in the armed forces? Are you out on bail for another
offense?). The magistrate also set bail at this proceeding.
However, the magistrate did not possess any financial
information indicating an arrestee's ability or inability
to make bail, nor did the magistrate inquire into the
arrestee's financial status. As a practical matter, the
magistrate routinely adopted the bail amounts contained on
the bail order form, which had been completed by the
arresting officer in conjunction with the intake district
• Arrestees were not represented by counsel during
• After magistration, an arrestee would finally have an
opportunity to complete a pauper's oath, declaring his
indigency and requesting a court appointed attorney.
• The next hearing, which would be the first hearing the
arrestee would have court appointed counsel, would occur
anywhere from a few days to a few weeks after magistration.
Accordingly, if an arrestee was unable to pay the bail set at
magistration, the arrestee might be held for weeks solely
based on his inability to pay.
Bail Schedule Policy.
after Booth's arrest and during the pendency of this
lawsuit, significant changes were made to Galveston
County's magistration system with the express goal to
bring it into compliance with ODonnell II. The new
system functions as follows:
• After a felony arrestee is taken into custody, the
arresting officer prepares a bail order form identifying the
charges levied against the arrestee, as well as a bail amount
for each charge.
• In setting the bail amounts for felony charges, the
arresting officer calls the intake district attorney, who
recommends a bond amount based on amounts reflected in a
schedule prepared by the District Attorney for use by
attorneys in his office. If the arrestee has multiple
charges, the recommended bail amounts for each charge are
• After the arresting officer completes the bail order
form, the felony arrestee is booked into the Galveston County
• The first time an arrestee appears before a judicial
officer is at magistration. Galveston County magistrations
occur twice a day at 7:00 a.m. and 7:00 p.m. Given this daily
schedule, an arrestee usually appears for magistration within
12 hours of incarceration. Sometime prior to magistration,
the arrestee is interviewed by an individual from the
Personal Bond Office. Created in July 2018, the Personal Bond
Office is responsible for interviewing individuals about
their financial condition as they are booked into jail.
During this interview, the arrestee completes a detailed
financial affidavit. This detailed financial affidavit is
included in the packet presented to the magistrate before
• At magistration, the magistrate still explains the
charges levied against the arrestee, provides statutory
warnings such as the right to remain silent, asks a few
questions, and sets bail. However, under the new system, at
the time bail is set the magistrate now possesses the
detailed financial affidavit the arrestee completed.
• At the initial bail hearing held at magistration,
Galveston County does not provide defense counsel to those
arrestees who are financially unable to afford
representation. There is a written policy officially adopted
by the District Court Judges, effective October 1, 2018, that
makes clear that indigent arrestees do not receive appointed
representation during the initial bail hearing.
• Galveston County's written policy provides that
within 48 hours of magistration, arrestees whose financial
affidavits indicate that they would not be able to post the
amount set as bail are brought before a magistrate for a bail
review hearing. As a practical matter, this bail review
hearing typically occurs 12 hours after magistration, either
at 7:00 a.m. or 7:00 p.m. The bail review hearings take place
right before the initial magistrations.
• At the bail review hearing, Galveston County provides
an indigent arrestee with counsel. More specifically, the
District Court Judges appoint a single defense lawyer to
appear at every bail review docket, and that attorney is
available to advise and represent arrestees at the bail
review hearing. Prior to the bail review hearing, arrestees
can meet privately with the lawyer to discuss their financial
situation in preparation for the bail review hearing. The
defense lawyer is appointed for the limited purpose of
handling the bail review hearing.
• At the bail review hearing, defense counsel and a
prosecutor make arguments and present evidence to either
reduce or maintain the previously set bail amount. The
magistrate is supposed to explain the reason for his or her
decision either in writing or verbally for the record.